dismissed L-1A Case: Coffee Trade

identifyingdata deletedto
preventclearlyunwarranted
invasionofpersonalprivacy
PUBLICCopy
U.s. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services ~
.,
File: WAC 0318850237 Office: CALIFORNIA SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
APR 05 2001
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~----:~ --;--
Robert P. Wiemann, Cff
Administrative Appeals Office
www.uscis.gov
WAC 03 18850237
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pmsuant to section 1OI(a)(15)(L)of the Immigration and Nationality Act (the Act), 8
U.S.c. § I 10l(a)(15)(L). The petitioner is a general partnership organized in the State of California that
claims to be engaged in the import, wholesale, and retail sale of coffee machines and coffee l?eans. The
petitioner claims that it is a subsidiary of the Coffee Trade RA. Ltd., located in Tel Aviv, Israel. The
petitioner seeks to employ the beneficiary as its vice president/marketing manager for a three-year period.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States in a managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the.director
applied an erroneous standard in requiring that the petitioner employ "a subjectively devised 'number' of
employees to establish executive capacity." Counsel contends that the director neglected to consider whether
the beneficiary would serve as a function manager.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(aXI5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same. employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed oIJ. Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(I)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that ~as
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
WAC 0318850237
Page 3
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 10I(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The nonimmigrant petition was filed on June 9, 2003. On the Form 1-129, the petitioner indicated that it
employed five workers, and stated that it intended to employ the beneficiary as its vice president/marketing
WAC 0318850237
Page 4
manager. In a letter dated May 20,2003, counsel for the petitioner described the beneficiary's proposed duties
as follows:
(1) Determine the demand for products and services offered by its parent company and
identify potential customers;
(2) Develop pricing strategies with the goal of maximizing parent company's profits or share
of the market while ensuring the firm's customers are satisfied;
(3) Oversee product development or monitor trends that indicate the need for new products
and services; Develop long term and short term international marketing policy;
(4) approve large amount transaction or extension of credit to retailers;
(5) recruit and train sales representatives; conduct business analysis and market forecasting
on routine basis and
(6) report business performances to the President of parent company.
The petitioner also submitted an organizational chart for the U.S. company, which shows that the partners of
the aompany supervise a general manager, who in tum supervises two area sales managers, an office manager,
an import manager, and a finance manager. The office manager is depicted as supervising two service
technicians and a warehouse/delivery supervisor. The chart does not depict the beneficiary's proposed
position, nor does it identify any employees by name.
In addition, the petitioner provided copies of state and federal quarterly tax and wage reports and IRS Forms
W-2, Wage and Tax Statement, for 2002, indicating that the company employed a total of four employees
during the year preceding the filing of the petition, only one of whom appears to have worked on a full-time
basis. The petitioner did not provide any payroll or wage records for 2003.
The director requested additional evidence on June 20, 2003, instructing the petitioner to submit: (1) a more
detailed description of the beneficiary's proposed duties, including all duties to be performed and the
percentage of time to be spent on each listed duty; (2) an organizational chart for the U.s. company that
clearly identifies the beneficiary's proposed position and all employees under the beneficiary's supervision;
and (3) a brief description of job duties, educational level, annual salaries/wages and immigration status for
all employees of the U.S. company.
In a response dated September 9, 2003, the petitioner reiterated the job duties submitted with the initial
petition and added the following:
[The beneficiary] is the manager for the international marketing department. As such, she is
responsible for overseeing the sales managers as well as outside sales representatives. She has
the final word in regards to the hiring and firing of employees under her supervision. [The
beneficiary] establishes the policies, principals and procedures for the international marketing
department and then delegates the power to her employees to implement the policies and
ensure that the production, distribution and sales are in accordance with her guidelines.
WAC 0318850237
Page 5
The petitioner submitted a revised organizational chart for the U.S. company, which shows that the company
is managed by its partners, who in turn supervise a general manager, who is also one of the partners of the
company. The general manager is depicted as supervising an office administration department consisting of
an office manager, a service technician and a warehouse/delivery supervisor; an international marketing
department, managed by the beneficiary, who would supervise two sales managers; and a finance department,
which is outsourced to a contracted CPA finn. The petitioner indicated that the two sales managers to be
supervised by the beneficiary are responsible for coordinating sales promotions, planning and attending major
trade shows, facilitating sales for major customers, implementing sales plans, and reporting market trends to
the beneficiary. The petitioner indicated that one sales manager has a bachelor's degree and one has an
associate's degree.
The director denied the petition on September 26,2003, concluding that the petitioner had failed to establish
that the beneficiary would be employed in a primarily managerial or executive capacity. The director noted
that the petitioner described the beneficiary's proposed duties in broad and general tenns, and failed to
provide sufficient detail regarding the beneficiary's actual duties and the percentage of time devoted to those
duties. The director acknowledged the petitioner's claim that the beneficiary would supervise two sales
managers, but noted that the petitioner did not claim to employ any lower-level sales personnel. The director
found insufficient evidence to establish that the beneficiary would supervise a subordinate staff of
professional, managerial, or supervisory personnel who would relieve her from perfonning non-qualifying
duties.
On appeal, counsel for the petitioner submits the following statement on Fonn 1-290B, Notice of Appeal:
The Service erred in utilizing the caprious [sic] standard to meet the criteria for "executive or
managerial capacity." The Service insists that the petitioner must employ a subjectively
devised "number" of employees to establish executive capacity. The Service is demanding
that the petitioner confonn to a set fonnula wherein the staff must include a supervisory level
under the beneficiary and staff under the supervisory level or a level under the beneficiary
containing at least one professional. These are not the only alternatives. The Service is
neglecting the issue of "Function" which should have been settled with the 1990
Amendments to INS Act.
Counsel's assertions are not persuasive. Upon review of the petition and the evidence, the petitioner has not
established that the beneficiary will be employed in a managerial or executive capacity. When examining the
executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of
the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly
describe the duties to be perfonned by the beneficiary and indicate whether such duties are either in an
executive or managerial capacity. Id.
As noted by the director, the petitioner has provided a vague and nonspecific description of the beneficiary's
duties that fails to demonstrate that she will perfonn primarily managerial or executive duties. Rather, the
position description includes several duties that suggest that the beneficiary would be responsible for
perfonning market research activities for the company. For example, the petitioner indicated that the
WAC 0318850237
Page 6
beneficiary will be responsible for detennining the demand for products and services, identifying potential
customers, monitoring trends indicating the need for new products, and conducting business analysis and
market forecasting. The petitioner did not indicate that the beneficiary would delegate these tasks to a
subordinate employee, nor did it explain how these market research and analysis tasks would fall under the
statutory definitions of managerial or executive capacity. The actual duties themselves reveal the true nature
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d
41 (2d. Cir. 1990).
The AAO acknowledges that the position description submitted included some responsibilities that could be
considered managerial in nature, such as recruiting and hiring sales representatives, developing pricing
strategies and developing the company's long-tenn and short-tenn marketing policy. However, the definitions
of executive and managerial capacity have two parts. First, the petitioner must show that the beneficiary
perfonns the high-level responsibilities that are specified in the definitions. Second, the petitioner must prove
that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or
her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991). The petitioner's initial position description suggested that the beneficiary will perfonn a
combination of non-qualifying and qualifying duties, and did not contain sufficient detail to establish the
beneficiary's employment in a primarily managerial or executive capacity.
Accordingly, the director requested additional evidence to establish the beneficiary's eligibility for the benefit
sought, including a detailed position description, a list of all duties to be perfonned on a day-to-day basis, and
the percentage of time the beneficiary would devote to each specific job duty. The regulation states that the
petitioner shall submit additional evidence as the director, in his or her discretion, may deem necessary. The
purpose of the request for evidence is to elicit further infonnation that clarifies whether eligibility for the
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2{b){8)and (12).
Here, the evidence requested was critical, given the deficiencies of the initial position description. In
response, the petitioner re-submitted the same inadequate job description, and failed to provide any indication
as to how the beneficiary's time would be divided between managerial and ~on-managerial duties. Based on
the current record, the AAO is unable to detennine whether the claimed managerial duties constitute the
majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial
administrative or operational duties. Although specifically requested by the director, the petitioner's
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is
managerial in nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923
F.2d 175, 177 {D.C. Cir. 1991).
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying
the petition. 8 C.F.R. § 103.2{b){14). Furthennore, on appeal, counsel for the petitioner does not even
acknowledge the director's finding that the position description was inadequate and overly vague to establish
the beneficiary's claimed employment in a managerial or executive capacity. The petitioner's failure to submit
the evidence requested by the director is sufficient grounds for dismissal of the appeal.
On appeal, counsel alleges that the director placed undue emphasis on the size of the petitioning organization
and the number of subordinate employees to be managed by the beneficiary. As required by section
WAC 03 18850237
Page 7
101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting
in a managerial or executive capacity, CIS must take into account the reasonable needs ofthe organization, in
light of the overall purpose and stage of development of the organization. To establish that the reasonable
needs of the organization justify the beneficiary's job duties, the petitioner must specifically articulate why
those needs are reasonable in light of its overall purpose and stage of development. In the present matter, the
petitioner has not explained how the reasonable needs of the petitioning enterprise justify the beneficiary's
performance of non-managerial marketing research and analysis tasks. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972».
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be
"primarily" employed in a managerial or executive capacity as required by the statute. See sections
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). As discussed above, the petitioner failed to provide
requested evidence which would have assisted in determining whether the beneficiary's duties are in fact
primarily managerial in nature, and therefore the petitioner has failed to establish this essential element of
eligibility.
In addition, although not discussed by the director, the petitioner has failed to document its claimed staffing
levels. The petitioner claimed to employ a general manager, an office manager, a warehouse/delivery
supervisor, a service technician, and two sales managers, and proposed employing the beneficiary as its
marketing manager. The petitioner has not submitted any documentary evidence to corroborate that it
actually employed the claimed workers at the time of filing, as the petition opted to provide wage and salary
records from 2002 only. The records submitted therefore only confirm the employment ofthe office manager,
who was the only full-time employee of the company in 2002. While it is possible that the petitioner hired
additional staff prior to the filing of this petition, going on record without supporting documentary evidence is
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N
Dec. at 165.
Even assuming that the petitioner does in fact supervise the claimed employees, the AAO notes that all of the
claimed employees have managerial or supervisory job titles. The petitioner did not submit evidence that it
employed any subordinate staff members who would perform the actual day-to-day, non-managerial
operations of the company. When examining the managerial or executive capacity of a beneficiary,
Citizenship and Immigration Services (CIS) reviews the totality of the record, including descriptions of a
beneficiary's duties and his or her subordinate employees, the nature of the petitioner's business, the
employment and remuneration of employees, and any other facts contributing to a complete understanding of
a beneficiary's actual role in a business. The evidence must substantiate that the duties of the beneficiary and
his or her subordinates correspond to their placement in an organization's structural hierarchy; artificial tiers
of subordinate employees and inflated job titles are not probative and will not establish that an organization is
sufficiently complex to support an executive or manager position. Notwithstanding the managerial job titles
granted to the beneficiary's subordinates, the petitioner has not provided evidence of an organizational
structure sufficient to elevate the beneficiary to a supervisory position that is higher than a first-line
supervisor of non-professional sales employees. An individual whose primary duties are those of a first-line
WAC 03 18850237
Page 8
supervisor will not be considered to be acting in a managerial capacity merely by virtue of his or her
supervisory duties unless the employees supervised are professional. Section 101(a)(44)(AXiv) of the Act.
The only claim made by counsel on appeal is that the director failed to consider whether the beneficiary will
serve as a "function manager." The term "function manager" applies generally when a beneficiary does not
supervise or control the work of a subordinate staff but instead is primarily responsible for managing an
"essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. §
1101(a)(44XA)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner claims
that the beneficiary is managing an essential function, the petitioner must furnish a detailed position
description that clearly describes the duties to be performed in managing the essential function, i.e. identifies
the function with specificity, articulates the essential nature of the function, and establishes the proportion of
the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. An employee who primarily
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily"
employed in a managerial or executive capacity. Boyang. Ltd. v. I.NS., 67 F.3d 305 (fable), 1995 WL
576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988)).
In this matter, the petitioner has not provided evidence that the beneficiary will manage an essential function.
As discussed above, the petitioner has not submitted evidence that it actually employs other workers to
perform the sales and marketing functions of the company. In addition, the description of the beneficiary's
duties includes a number of non-qualifying duties associated with the company's market research activities.
While performing non-qualifying tasks will not automatically disqualify the beneficiary as long as those tasks
are not the majority of the beneficiary's duties, the petitioner still has the burden of establishing that the
beneficiary is "primarily" performing managerial or executive duties. Section 101(a)(44) of the Act. Whether
the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has sustained its
burden of proving that his duties are "primarily" managerial. Again, the petitioner, because of its failure to
submit a detailed account of the beneficiary's proposed duties and how her time will be allocated among those
duties, has not met this burden. Absent a clear and credible breakdown of the time spent by the beneficiary
performing her duties, the AAO cannot determine what proportion of his duties would be managerial or
executive, nor can it deduce whether the beneficiary is primarily performing the duties of a function manager.
See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
Based on the foregoing discussion, the petitioner has failed to establish that the beneficiary will be employed
in the United States in a primarily managerial or executive capacity. Accordingly, the appeal will be
dismissed.
Beyond the decision of the director, the remaining issue to be discussed in the present matter is whether the
petitioner has established that a qualifying relationship exists between the U.S. company and the beneficiary's
overseas employer. To establish a "qualifying relationship" under the Act and the regulations, the petitioner
must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer
WAC 03 18850237
Page 9
(i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally
section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
The petitioner states that it is a subsidiary of Coffee Trade B.A. Ltd, which the petitioner claimed was
"established in 1999" and incorporated in Mexico on June 20, 2002. In support of this assertion, the petitioner
submitted a general partnership agreement for the U.S. company, dated February 1,2001, which indicates that
the partnership would have a capital contribution of $15,000, and describes the ownership interest as follows:
Coffee Trade B.A. Ltd. 55%
25%
25%
The AAO notes that the partnership agreement was entered into by the foreign entity, under its incorporated
name, more than 14 months prior to its incorporation. It is incumbent upon the petitioner to resolve any
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter afRo, 19 I&N Dec. 582, 591-92 (BIA 1988).
The petitioner also submitted the U.S. compan 's 2001 Form 1065, U.S. Return of Partnership Income, which
indicates that the company has two partners, and that the only capital
contributed during the year, $15,000, was provided by Doubt cast on any aspect of the
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining
evidence offered in support of the visa petition. Matter afRo, 19 I&N Dec. 582, 591 (BIA 1988).
The director subsequently requested evidence that the foreign entity had in fact paid for its purported interest
in the U.S. company, including copies of original wire transfers or other documentary evidence related to the
purchase of ownership. In response, the petitioner stated: "The total initial investment in [the petitioner] was
$15,000.00, the Israeli company paid $8,250.00. _I[the purported owner of the foreign entity]
brought the cash from the profits made from his Israeli company on two business trips." The petitioner did
not submit corroborating documentary evidence, such as bank deposit receipts or bank statements for the U.S.
company, identifying the claimed deposits of funds from the foreign entity. Again, going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter ofSofflci, 22 I&N Dec. at 165. The failure to submit requested evidence that precludes a
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4).
Upon review of the totality of the evidence submitted, the AAO has serious doubts regarding the authenticity
of the submitted partnership agreement, and the petitioner therefore has not established that the foreign entity
actually owns any interest in the petitioner, or otherwise has a qualifying relationship with the U.S. company.
For this additional reason, the appeal will be dismissed.
An application or petition that fails to comply with the technical requirements of the law may be denied by the
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajJ'd. 345 F.3d 683
WAC 03 18850237
Page 10
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1362.
Here, that burden has not been met.
ORDER: The appeal is dismissed.